There are two things fundamentally wrong with the 13th Amendment. The first is its illegality, as has been cogently pointed out by the late Justice Raja Wanasundera. Notwithstanding its illegality and the highly objectionable circumstances in which it was birthed, ‘legality’ was conferred on the document by a succession of elections which were contested by even those who initially objected on the grounds of illegality and suspect birth-circumstances.
The second issue with this problematic Amendment is non-implementation. While the merging of the North and East was declared illegal by the Supreme Court, the document in the main stands and since it does its non-implementation is problematic on several counts. First, it amounts to a violation of the Constitution. Secondly, it gives ammunition to those with particular (and even pernicious) notions about ‘ethnic-conflict’, grievances and aspirations. They plead ‘If the Sinhala (sic) Government cannot implement the Constitution, how can anyone believe that it is interested in meaningful discussion of grievances and solutions?’
Two strident voices in the ruling UPFA coalition, Champika Ranawaka and Wimal Weerawansa, have objected to the holding of Provincial Council elections in the North. They’ve referred to the heavy lobbying of pro-LTTE, pro-Eelam sections of the Tamil community, here and abroad, as legitimate reasons for thinking twice about elections. There are also questions about incomplete census information, given out-migration during the conflict years. Others have stated that resettlement is not complete and pointed out that the military presence can compromise this exercise in democracy.
Now no one in his or her right mind would expect a nation that has suffered a terrorist insurgency of the kind Sri Lanka experienced, to throw caution to the winds, downsize to nothing its military establishment and remove all army camps. It’s just practically impossible and politically dangerous, especially since the Eelam lobby is still vociferously calling for the division of the country and even a return to arms.
On the other hand, the people in the North cannot wait for democracy forever. They have a right to demand that the Constitution be implemented in the North, just as it is in other parts of the country, even in ‘incomplete’ (as per the 13th Amendment) form. If they can vote in a Presidential and Parliamentary election, then it must be possible for them to vote in a Provincial Council election. If the absence of ideal circumstances did not stop these other elections being held, why this, they can legitimately ask. They can also claim that the Government is going slow only out of fear that its candidates will be trounced. Win or lose, this cannot be postponed forever without robbing further gloss from the regime’s brag about bringing about post-conflict normalcy. Holding elections, however, will not untie the messy knot of the legality matter, which includes the thorny question of ‘relevancy’ that takes us to the legitimacy or otherwise of grievance and the logic of devolution as a solution that draws from the fundamental problems faced by minorities, especially Tamils, the majority of whom do not live in the North and the East.
The Government (and the Opposition, including the TNA) have been scandalously averse to discussing the core issue, that of ‘Tamil (or minority) grievances’. Rhetoric has ruled. Substantiation seems to be a word that does not exist in the collective vocabulary of politicians in these parties.